Justin Jermaine Johnson appeals his convictions for two counts of murder, kidnapping, burglary in the first degree, and possession of a firearm during the commission of a violent crime. The evidence at trial showed that Johnson got into an argument with his ex-girlfriend Kaisha Caraway. During this heated argument, Johnson retrieved a shotgun and killed his own son (Caraway’s child) as well as Caraway’s mother.

Johnson sets forth the following errors on appeal: the circuit court erred in (1) admitting predeath photographs of the victims, (2) permitting a witness to testify via Skype, (3) admitting his confession to police when it was not voluntarily given, (4) denying his motion for mistrial when he was brought shackled and guarded into a holding room adjacent to the jury pool’s location, (5) denying his motion for mistrial when two witnesses involved in the case discussed the merits of the case in the hallway outside the courtroom and within earshot of prospective jurors, and (6) sentencing him to five years for possession of a weapon during the commission of a violent crime when a statute prohibits such punishment.

Photographs

During trial, the State was permitted to introduce photographs of the victims prior to the death. Johnson objected, arguing that the photos were irrelevant and served only to arouse sympathy. The Court of Appeals agrees that it was error to admit these photographs, but concludes that any error was harmless based on the overwhelming evidence of guilt.

Skype Testimony

During the trial, the State was permitted to present the testimony of one of the police officers remotely, via Skype. Johnson objected, arguing that the failure to present such testimony in person violated his Sixth Amendment right to confront witnesses. The Court concludes the trial court erred in permitting the State to present testimony via Skype.

“The Fourth Circuit has indicated the generalized conviction of criminal offenses is not sufficient to dispense with in-court confrontation and other courts have generally permitted such testimony only in cases in which the witness’s health prevents him or her from traveling or possibly when a witness is beyond the subpoena power of the court . . . in the absence of an important public policy or at least an exceptional circumstance, modifying a defendant’s truest exercise of the Sixth Amendment right via in-person confrontation is inappropriate”

Despite the trial court’s error, the Court of Appeals nevertheless finds that the error was harmless, in light of the substance of the testimony and other evidence presented at trial.

Voluntariness of Confession

Johnson argues the circuit court erred in finding his confession was voluntary. He asserts that police misrepresented the evidence to him, threatened him with the death penalty, and repeatedly referenced his daughter and what she would think of her father’s actions, rendering his confession involuntary. The Court of Appeals disagrees. “Overall, we conclude the circuit court did not abuse its discretion in admitting Johnson’s statement as the evidence supports a finding his will was not overborne by the various tactics employed during his interrogation.”

Remaining Issues

Johnson argues that he was prejudiced when he was brought to the courthouse in shackles. “The circuit court did not err in denying Johnson’s motion for mistrial based on his being brought into the courthouse in handcuffs and surrounded by police personnel as the record fails to demonstrate any juror observed this activity or that any juror was prejudiced.”

Johnson also argues that his attorney overhead two witnesses discussing the evidence within earshot of jurors. The Court holds that it was not error to deny Johnson’s subsequent motion for mistrial, because “the record fails to demonstrate a juror overheard the comments or was prejudiced by them.”

Lastly, Johnson argues that he should not have been sentenced to an additional 5 years for possession of a firearm during a violent crime, because the statute states that such a sentence is prohibited when a defendant is otherwise sentenced to life in prison. The Court finds that the issue is not preserved for review. (Judge Short writes a concurring opinion stating that “Although this argument was not raised to or ruled upon by the trial court, I would address the issue in the interest of judicial economy.”)